General remarks.

CHAPTER II,

FOR IRREGULARITY IN EMPANNELING THE JURY.

I. Deficiency of juror in property, or in personal qualifications. II. Where a juror has personated another but no injustice has been done.

III. Variance in the name of one of the jurors.

IV. Where a juror has been challenged and set aside, and afterwards sworn as a talesman.

V. Mistakes or omissions of officers.

VI. Objection to grand jurors.

By the laws of this State, it is provided that "No member of this State can be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers."(1) These peers consist of twelve good and lawful men (probi et legales homines) possess ing such qualifications, and convened and empanneled by such formalities as the law prescribes.(2) It is a provision derived. from Magna Charta, and introduced into the several constitutions of the different states and of the United States.(3) If, therefore, these forms be disregarded, and the case tried by incompetent persons, irregularly summoned and empanneled, or one man personate another, the verdict will or will not be set aside, according as the party complaining may or may not have sustained injury by the irregular proceeding.(4)

The former practice was strict in this respect. The competency of jurymen was rigidly scanned, and even inquests set

(1) 1 R. S. 93, sec. 7.

(2) Vide 2 R. S. 413, 414, and Gra. Prac. 245.

(3) Vide 3 Peters, 446.

(4) As to the qualifications of jurors, see 2 N. Y. R. S. 411, sec. 13. (Banks, Gould & Co's Ed. 1852,) p. 656, sec. 5.

Deficiency of juror in property, or in personal qualifications.

aside for what would now be disregarded as slight irregularities unless actual injury ensued.

I. Deficiency of juror in property, or in personal qualifications.

The verdict has been set aside where some of the jurors have been notoriously deficient in property, or the personal qualifications required by law, or when personated by others.

[*20] *In Stainton v. Beadle, a rule had been obtained to show cause why the inquisition should not be set aside, on the ground that the writ of inquiry had been executed at the time of the assizes before jurymen, some of whom were debtors taken out of prison for the purpose. This was opposed on the ground that the defendant's attorney had attended the execution of the writ; but, per Lord Kenyon, Ch. J. "My doubt at first was, whether the defendant had not waived taking advantage of this objection by appearing be ore the sheriff: but for the precedent's sake, we ought to set aside this inquisition." His lordship also hinted that, if the sheriff had been made a party to the rule, perhaps the court would have made him pay the costs of the application.(1)

So when a juror, although regularly summoned and returned, personated another.

In Norman v. Beaumont, (2) Richard Geater, summoned and returned as a juror, did not attend the assizes; but one Richard Sheppard, who was verbally summoned to serve as as a juror on the crown side, did attend: when Richard Geater was called, Richard Sheppard (thinking himself called) answered and was sworn as a juror. Defendant insisted, that the verdict was null and void, the trial not having been by twelve but by eleven jurors only. Neither party knew anything of the mistake till after the trial. It was urged for plaintiff that defendant ought to have

(1) 4 Term Rep. 473.

Deficiency of juror in property, or in personal qualifications.

challenged Sheppard; that after recording the verdict no averment can be admitted against the record; that Sheppard's place of abode was different from that of Geater, which would have been good matter of challenge, and if defendant could aver against the record, yet the defect is cured by the statute. The verdict was for plaintiff, damages one shilling; and Lord Ch. Justice Lee, who tried the cause, had certified to entitle *plaintiff to costs. Per Cur.-By the Statute 3 Geo. II, [*21] all the twelve jurors ought to be drawn out of the box,(1) and the name of Richard Sheppard was never put into the box. The court are not bound by the record. Here has been no trial, nor is the defect cured by the statute. The rule to show cause why the verdict should not be set aside was made absolute.

So, in Russell v. Ball,(2) defendant paid twenty-five pounds into court on the common rule; plaintiff refused to accept the money, proceeded to trial, and on a full hearing of the merits, had a verdict for £25, the exact sum paid into court, (in consequence whereof plaintiff not having recovered more, was, by the rule, liable to pay costs to defendant.) To avoid which, plaintiff moved to set aside the verdict, objecting that the cause was tried by eleven jurors only. It appeared that one John Pearce, summoned on the jury, did not appear, but his son of the same name, not qualified, attended the assizes, and when the father was drawn, and called, answered for him, and was sworn on the jury. Per Cur.-"The verdict by eleven jurors only is no verdict it is null and void."

And the same rule has been held to apply where the juror is destitute of the necessary personal qualifications.

The wisdom of the law declaring that a juror be omni exceptione major, contrasted with the evil consequences that might result from a too rigid adherence to the rule, was strongly tested

(1) Accord. 2 N. Y. R. S. 420, sec. 60, 61. (Banks, Gould & Co's. Ed. 1852,) p. 667, sec. 70-72.

(2) Barnes, 455.

Deficiency of juror in property, or in personal qualifications.

in a recent case, the King v. Tremaine.(1) A new trial was ordered, it appearing that a juror regularly summoned had been personated by mistake under the following circumstances. A special jury had been directed, but all the special jurymen sum

moned not being in attendance, a tales was prayed on the [*22] part of the *crown. In the tales panel annexed to the record was the name of "John Williams," and that name being called by the associate, a person who answered thereto went into the box, and being sworn of the jury, joined with the rest in returning the verdict. After the trial was concluded, it was discovered that the name of the person who thus answered was Richard Henry Williams, the son of John Williams: that he was an infant under the age of twenty-one, being only of the age of twenty years and six months: that he had not been summoned on the jury, and that he was not qualified in respect of property to serve, being possessed of no freehold or copyhold estate whatever. It appeared from the affidavit of the young man himself, that his father had been summoned to attend as a juryman at the assizes; but that being unable, from illness, to appear, he had requested the deponent to attend for him that he attended accordingly, and that upon hearing the name of John Williams called, he answered thereto, and went into the box, and took the juryman's oath, not knowing that there was any harm in so doing. All collusion between the deponent and defendant was denied.

Against the motion, it was urged, that the objection ought to have been taken at the trial, and the juror challenged, and the great injury that must result to the administration of justice, should the objection be entertained; and Hill v. Yates, (2) and "The case of a Juryman,"(3) which will be noticed hereafter, were cited. The judges delivered their opinions seriatim, two of which are selected as illustrative of the rule.

(1) 7 Dow. & Ryl. 684.

(2) 12 East, 229.

Deficiency of juror in property, or in personal qualifications."

Abbott, Ch. J.-"I am of opinion that there ought to be a new trial. I do not see how a challenge, properly so called, could have been taken to this person, he not having been summoned as a juror. If he had been returned on *the panel, [*23] then a challenge would have been the proper mode of ob

jecting to him. No person on either side of this case appears to have been aware that this young man, who had thus intruded himself into the box, was not the party really returned upon the jury. The cause being to be tried by a special jury, the tales, if prayed, would be to be taken from some other list, and a tales being prayed, this person is supposed to be taken from that other panel. I am aware of the difficulty mentioned by Lord Ellenborough, in Hill v. Yates, that this objection would afford an opportunity for practice; that by underhand contrivance, a party might get a person who is disqualified to answer for another, and to serve on the jury, reserving to himself the power of bringing the objection forward, if the objection should be against him. There is that difficulty certainly, and it is necessary to guard as well as we can, against such practices: but I do not know that. we should be justified, merely from the apprehension of mischief that may arise in some cases hereafter, by reason of illegal practices of that kind, in going the length (which we must do if we refuse this rule) of saying, without any practice on either side, that a verdict pronounced by a jury, on which a person incompetent, both by reason of non-age and want of qualification, has served, ought to stand, particularly in a case so highly penal. I think we must not suffer ourselves to be influenced on the present occasion by an apprehension of ill consequences that may arise in other cases hereafter. Indeed, it is not very likely that such practices can be of frequent occurrence, or that many persons would be likely to interpose and serve on a jury to whom such an objection as this would arise. Considering the way in which this objection has occurred, and that we are not restrained by any technical rule of law, I think we are bound to look to the facts of this particular case, and say that the only mode of correcting this error, is to make the *rule abso- [*24] VOL. I.

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